Pragmatic Textualism

Traditional textualism instructs judges to adhere to a statute's linguistic meaning and reject as irrelevant its interpretive consequences. Justice Scalia famously contrasted his restrained textualist judge with "Mr. Fix-It," a judge who inappropriately weighs consequences. Today, however, textualists increasingly embrace consequentialist reasoning. This Article documents this undertheorized shift and the emerging textualist efforts to justify it, including Justices Kavanaugh and Barrett's arguments for nonliteralism and judicial sensitivity to context.

This Article critiques these efforts: Modern textualist theory lacks a compelling explanation for its newfound reliance on interpretive consequences. Next, we offer a novel theory of the linguistic role for interpretive consequences in determining word meanings. The theory, which we term the "bounded indeterminacy theory," is an aspect of a broader theory of "pragmatic textualism." Pragmatic textualism seeks to explore how context informs the linguistic meanings of statutes. The bounded indeterminacy theory explains one aspect of context-specific interpretation, which is that interpretive consequences help determine the linguistic meanings of statutory terms.

We test the bounded indeterminacy theory, presenting an empirical study to assess whether and how ordinary people (N = 2,185) integrate consequences into their understanding of linguistic meaning. An empirically supported bounded indeterminacy theory provides various benefits to legal interpretation theory and practice. It offers a superior explanation for some of the Court's recent interpretations, demonstrates the interconnectedness of textualism and purposivism, supports some of the Court's current interpretive principles but not others, and illustrates the near obsolescence of the absurdity doctrine.